Excerpt:.....falsely ascribing to this appellant the arrow injury. 19. i should now notice an interesting point of law raised by mr. but as the point of law is interesting, it is worthwhile noticing it. say clearly that any omission to state any particular in a charge will be only an irregularity which is curable unless the accused has been prejudiced thereby. it was also mentioned in the charge that banamali was armed with deadly weapons like bows and arrows......part at that time he may claim the benefit of doubt on, the question as to whether he shared the common object of the rioters. he is, therefore, entitled to an acquittal. 15. dura patra: -- doubtless, this appellant's name is found in the p.i.r. an injury was also found on him by the police when the investigation of the case was taken up. no specific overt act was attributed to him either by p.w. 6 or p.w. 8. it may, therefore, be argued with some justification that though he joined in the subsequent free fight between the parties, he was not in the original unlawful assembly whose common object was to assault mana das (p.w. 1) and others. he may also be given the benefit of doubt. 16. harihar patnaik and madan mohan mohapatra: these two persons sustained injuries and hence their.....

Judgment:

Narasimham, J.

1. This is an appeal from the judgment of the Sessions Judge of Mayurbhanj convicting the appellants under Sections 147, 148, 326 and 326/149, I.P.C. and sentencing them to various terms of rigorous imprisonment.

2. The appellants are all residents of village Ambo, P. S. Anandapur in the district of Keonjhar. It is admitted that there are two parties in that village hostile to each other. One party is led by the Zamindar of the village known as Shri Bhu-yan Sarat Chandra Mangaraj Mohapatra and the rival party is led by appellant Harihar Patnaik. The trouble seems to have arisen sometime after the abolition of the zamindary by the State Government. The Zamindar then transferred some of the communal lands of the village in favour of his son, wife and family deity. His rival party, however, challenged these transfers and agitated the matter before the higher authorities. There was a ferry across the river Baitarani which flows by the side of the village and while the Zamindar was claiming the ferry as his own, the other villagers were claiming it as Sarbasadharan property. The Harijans of the village, however, were on the side of the Zamindar. One Jagabandhu Majhi (who was acquitted in the lower Court) was the ferry man and he brought a criminal case against the zemindar and 38 other persons alleging that they had forcibly taken away his boats on 25-6-53. That case ended in acquittal.

The zamindar, in his turn, brought a counter case against his rivals for offences under Sections 147, 378, 504 and 447, I.P.C., for unlawful fishing in the river. That case was actually pending in the Magistrate's Court at Anandapur on the date of occurrence, which was 12-5-1954. Both the factions had gone to Anandapur in connection with that case, but as it was adjourned they returned back to their Tillage Ambo which is 10 miles from Anandapur. The occurrence was said to have taken place at about 3 P.M. on that day.

3. The prosecution case it that the accused party was very much annoyed with the Harijans of the village for having taken sides with the zamindar and therefore they collected together under a banian tree close to the Harijan Basti, picked up a quarrel with three of the Harijans, namely, Mana Das (P.W. 1), Dama Jena (P.W. 6) and Nata Jena (P.W. 8) and attacked them. Mana Das was severely injured and one of the injuries was a grievous hurt on his head. Some arrows were also shot at him. Nata Jena (P.W. 8) also sustained a simple injury.

In the course of the fight, several other persons both on the side of the prosecution and on the side of the defence sustained injuries. It was suggested that a free fight developed later on. In the course of which one Gani Patra of the accused party was killed. Then the fight stopped and both parties rushed to the police station with their own versions as to how the fight took place. Appellant Harihar Patnaik was first to reach the Thana at 9-30 P.M. He gave a report which was recorded as a station diary entry (Ext. 6) by the literate constable in charge, Khetra Mohan Das (P.W. 21).

The S. I. and the A.S.I. were both away from the Headquarters on that day. Mana Das (P.W. 1) however reached the Thana half an hour later at 10 P.M. and made a statement which was also recorded in the Station Diary Entry No. 209 by the same literate constable. He took immediate steps to send the injured persons for medical examination. When the S. I. of Anandapur (P.W. 23) returned to the Thana on the next day (13-5-54), he instituted two F. I. Rs on the basis of the two station Diary Entries, investigated both the cases and submitted charge-sheets in both of them. The trials of the two cases were held by the same Sessions Judge.

4. The counter case, as put, forward by appellant Harihar Patnaik, was that it was the zamindar's party consisting of the Harijans of the village who lay in ambush near the village and waylaid and attacked him when he returned to the village on a cycle from Anandapur. He sustained injuries during the attack, but somehow succeeded in reaching his house. Appellants Madan Mohan Mohapatra and Dura Patra were also attacked sometime later by the zamindar's men with brickbats and they sustained injuries.

It was further alleged that half an hour later there was a free fight in front of the Harijan Sahi between the Harijan party on the one hand and the accused party on the other. But, according to the defence, none of the accused persons of the case was in that fight.

5. It may be thus taken as admitted that there was some sort of free fight between the zamindar's party consisting mainly of the Harijans on the one hand and the accused party on the other, on the date of occurrence (12-5-1954) in the afternoon when both parties returned from Anandapur Court after the adjournment of the previous criminal case. The parties, however, differed as to who started the fight and also as to how the fight took place. According to the prosecution, 3 of the Harijans, namely, Mana Das (P.W. 1), Dama Jena (P.W. 6) and Nata Jena (P.W. 8) were the first to be attacked End afterwards there was a furious fight' between both sides. According to the defence, however, the fight took place in three stages, namely, the first attack on appellant Harihar Patnaik when he returned from Anandapur ON cycle, secondly the throwing of brickbats at appellants Madan Mohan Mohapatra and Dura Patra, and thirdly the free tight in front of the Harijan Sahi. Some eye-witnesses have been examined on both sides. According to the prosecution, it was the accused party which lay in ambush and started the fight, whereas according to the defence, the Harijans of the zamindar's party lay in ambush and attacked the accused party one after the other when they passed in front of them.

6. It will be useful at this stage to describe briefly the nature of the injuries sustained by both sides. The Assistant Surgeon of Anandapur (P. W. 19) examined Mana Das (P.W. 1) on 13-5-64 and found four injuries. Two of these were on the left leg and right forearm caused by arrows. One was a fracture of the skull caused by a sharp cutting weapon. Another was an incised cut wound on the head.

P.W. 22 is the Sub-Assistant Surgeon of Hatadihi Dispensary who also examined some of the injured persons. He found two simple injuries caused by a blunt weapon on Nata Jena (P. W. 8). Ranga Jena (P.W. 11), Chinta Das (P.W. 10) & Patnani Jena,(P.W. 9) were also found to have simple injuries caused by a blunt weapon. The injuries were found on appellants Madan Mohapatra, Harijar Patnaik and Dur Patra, but the Medical Officer who examined them was not cited as a witness though his injury reports were wrongly admitted in evidence. One of the accused party, namely, Gani Patra was admittedly killed.

7. The first question for consideration is whether the prusecution version of the occurrence has been proved beyond reasonable doubt. The occurrence took place in the village and as admittedly the village is rent into two factions, it is obvious that no disinterested eye witness will be forthcoming.

All the eye witnesses of the prosecution side are admittedly men of the zamindar's party. Many of them had figured as accused persons in the previous case brought by the ferryman Jagabandhu Majhi. Some of them were also named as accused persons in the counter case brought by appellant Harijar Patnaik. P.Ws. 1, 8, 9, 10 and 11 sustained injuries and consequently their competence to depose as eye witnesses is beyond question.

It was, however, urged both before the lower Court and before this Court that in view of the acute enmity prevailing between the two factions, it will be extremely unsafe to sustain a conviction based on the testimony of the partisan witnesses. There is doubtless much force in this argument.

But it should be pointed out that if this rule is extended too far, no crime committed in any village where there is acute party faction can ever be punished, because the eye witnesses are bound to belong to one party or the other.

It is true that the evidence of partisan witnesses requires great scrutiny and should not ordinarily be accepted unless there is some sort of independent corroboration or else there are some other intrinsic circumstances to show that it may be accepted.

8. So far as the defence version is concerned, I would agree with the lower Court that it is not believable. Two defence witnesses, namely, Sanatan Nath (D.W. 1) and Rangadhar Jena (D.W. 2) were examined to prove this version. But neither of these persons appeared before the police during investigation of the two cases and their belated testimony in Court can hardly carry conviction. They were also not cited as witnesses by appellant Harihar Patnaik in his counter case. Moreover D.W. 2 was admittedly a chance witness picked up when he came to obtain a gua license.

9-13. (After discussion of the prosecution evidence His Lordship recorded:) I am, therefore, inclined to agree with the learned lower Court that the essential details of the occurrence, as proved by P.Ws. 6 and 8, may be accepted though as regards the participation of each of the appellants in the crime, their evidence may require further scrutiny. The case of each of the appellants will be dealt with in turn.

14. Bandhu Majhi: -- This appellant was not named in the FIR. No injury was found on him. No specific act was attributed to him either by P.W. 6 or P.W. 8. He was one of the important persons of the accused party and he was the complainant in the previous criminal case brought against the zamindar and other persons for removal of his ferry boat.

It might be that he was a sympathiser of the accused party and was also present at the spot But in the absence of any overt act on his part at that time he may claim the benefit of doubt on, the question as to whether he shared the common object of the rioters. He is, therefore, entitled to an acquittal.

15. Dura Patra: -- Doubtless, this appellant's name is found in the P.I.R. An injury was also found on him by the police when the investigation of the case was taken up. No specific overt act was attributed to him either by P.W. 6 or P.W. 8. It may, therefore, be argued with some justification that though he joined in the subsequent free fight between the parties, he was not in the original unlawful assembly whose common object was to assault Mana Das (P.W. 1) and others. He may also be given the benefit of doubt.

16. Harihar Patnaik and Madan Mohan Mohapatra: These two persons sustained injuries and hence their presence at the spot at the time of the occurrence admits of no doubt whatsoever. Specific overt acts were attributed to them by P.Ws. 6 and 8. In fact, it was this Harihar Patnaik who was said to have caused the grievous hurt on the head of Mana Das with his 'Kata.' Appellant Madan Mohan Mohapatra assaulted P.W. 8 on his head with his stick.

There seems to be no special reason why P Ws. 6 and 8 should falsely attribute these overt acts to these two appellants. The mere fact that the appellants belong to the rival party and that the Harijan witnesses (P.Ws. 6 and 8) are the creatures of the zamindar would not suffice. In their case, therefore, I am inclined to agree with the learned lower Court and the conviction may be upheld.

17. Banamali Mohapatra: -- Doubtless, this appellant did not sustain any injury and consequently his presence at the spot cannot be taken as admitted. But according to P.Ws. 6 & 8. it was Banamali who shot two arrows which struck Mana Das There was no special enmity between P.Ws. 6 and 8 on the one hand and this Banamali on the other so as to justify an inference that they falsely implicated him.

Nor was he such an important leader of the accused party as to be singled out and given the principal part, ramely, shooting with arrows The fact that Mana Das had arrow injuries is well established by medical evidence and I am not inclined to accept the argument that PWs 6and 8 were falsely ascribing to this appellant the arrow injury.

18. In the result, I would accept the finding of the learned lower Court to the effect that inthe mob which was assembled to beat the Harijans, appellants Banamali, Madan Mohan and Harihar Patnaik were present and that they also participated in the attack thereby giving clear proof of their common object. Their conviction under Section 147, I.P.C. was justilied.

19. I should now notice an interesting point of law raised by Mr. R.K. Das regarding the conviction of appellant Banamali under Section 326/149, I. P. C. The point is somewhat academic, because he was also convicted under Section 148. I. P. C. and sentenced to one year's R. I. for that offence. The sentence for the offence under Section 326/149, I. P. C. was also one year and both the sentences were directed to run concurrently.

Hence even if Mr. Das succeeds in establishing that the conviction under Section 326/149, I. P. C. is illegal, it would not materially affect his client's case. But as the point of law is interesting, it is worthwhile noticing it. Banamali was charged with the substantive offence under Section 326, I. P. C. But the learned lower Court thought that as the arrow injury on Mana Das was not grievous in nature, Banamali could not be convicted of that offence.

The grievous hurt on Mana Das was caused by Harihar Patnaik. The learned lower Court, therefore, convicted Banamali under Section 326/149, I. P. C. though no charge under that section was framed against this appellant. Mr. Das urged that as the offence under Section 326, I. P. C. is different from the offence under Section 326/149, I. P. C. a person charged with the former offence could not be convicted of the latter.

In support of this argument, he relied on a decision oi the Supreme Court reported in the case of 'Nanak Chand v. State of Punjab', 1955 SC 274 ( (S) AIR V42) (A) where it was held that

'a person charged with an offence read with Section 149, I. P. C. cannot be convicted of the substantive offence without a specific charge being framed against him'.

Doubtless, that case was the converse of the present case, but Mr. Das relied mainly on the observation of their Lordships of the Supreme Court to the effect that an offence under Section 302/149, I. P. C. is a distinct offence from one under Section 302, I. P. C.

It is true that Section 233, Cr. P. C. says that for every distinct offence there should be a separate charge, but Section 225 and Section 537(a), Cr. P. C. say clearly that any omission to state any particular in a charge will be only an irregularity which is curable unless the accused has been prejudiced thereby.

The question, therefore, is whether though a charge under Section 326, I. P. C. is framed, the omission to mention the ingredients of Section 149, I. P. C. also in that charge would be a mere omission to mention particulars so as to be cured by Sections 225 and 537(a), Cr. P. C. Till now, all the High Courts have taken the view that it is only an irregularity which will not vitiate the trial unless prejudice is shown.

I may refer to 'Dhian Singh v. Emperor', 1915 Lah 418 (AIR V2) (B), 'Ramasray Ahir v. Emperor', 1928 Pat 454 (AIR V15) (C), 'Ghaziuddin Khan V. Emperor', 1933 Oudh 19 (AIR V 20) (D). It is true that the reasoning in 1928 Pat 454 (AIR V15) (C) was not accepted as correct by the Supreme Court in 1955 SC 274 ( (S) AIR V42) (A) but that was on the question as to whether Section 149, I. P. C. created a distinct offence or not. The question in controversy now was not discussed by the Supreme Court.

20. Banamali was charged with an offence under Section 148, I. P. C. also and while describing that charge, the common object of the unlawful assembly, namely, to assault Mana Das (P.W. 1) and others was specified. It was also mentioned in the charge that Banamali was armed with deadly weapons like bows and arrows.

He thus had ample notice not only of the fact that he was charged with being a member of the unlawful assembly with a specified common object, but also that he was armed with deadly weapons. The only omission in the charge that though he did not cause grievous hurt to Mana Das that injury was caused by some other rioter in furtherance of the common object of all the rioters or else that he knew it to be likely to be caused in furtherance of that common object.

This omission seems only an irregularity which is curable. Doubtless, if there was no charge under Section 148, I. P. C. at all, it may be urged with some justification that prejudice was caused inasmuch as the appellant did not get an opportunity to cross-examine the prosecution witnesses regarding the common object of the rioters.

This seems to have been the main reason why in 'In re, Thaikkottathil Kunheen 1924 Mad 338 (AIR VII) (E)', and 'Kudrutulla v. Emperor', 39 Cal 781 (F), the conviction of a substantive offence read with Section 149, I. P. C. was set aside, in the absence, of a charge under that section. In 39 Cal 781 (F), this point was brought out jn the following passage,

'It is therefore in our opinion obligatory to set out the common object in a charge under Section 149, unless it has been already specified in the main charge under Section 147'.

21. The only other decision that requires to be noticed in this connection is (In re, 'Kottoora Thevan 1924 Mad 584 (AIR V11) (G). There were charges under Sections 147 and 395, I. P. C. there. The common object of the unlawful assembly as specified in the charge under Section 147, I. P. C. was 'to commit mischief and hurt'.

The accused were, however, convicted under Section 395/149, I. P. C. That conviction was rightly set aside in as much as the accused were not called upon to meet a case where the common object of the unlawful assembly was to commit dacoity, or else where the members of the unlawful assembly knew that dacoity was likely to be committed in furtherance of the common object.

In the present case, however, the common object of the unlawful assembly for the charge under Section 148, I. P. C. is identical with the common object required for the offence under Section 326/149, I. P. C. I am, therefore, of the opinion that the omission to mention Section 149, I. P. C. in the charge is only an irregularity which has not prejudiced this appellant in his defence.

22. The appeals of Bandhu Majhi alias Jagabandhu Majhi and Dura Patra are allowed, their conviction and sentences are set aside and they are acquitted. The convictions and sentences passed on Madan Mohan Mohapatra, Banamali Mohpatra and Harihar Patnaik are maintained and their appeal is dismissed.